JUDGMENT OF 17. 3. 1983 — CASE 280/81 HOFFMANN v COMMISSION
In Case 280/81
THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: S. Rozès Registrar: H.A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:
I — Facts
Christiane Hoffmann, a German national, was recruited as a secretary by the Commission of the European Atomic Energy Community with effect from 1 October 1960 and assigned to the library of the Joint Research Centre at the establishment at Ispra.
After she had been established as a secretary in Grade C 3 by a decision of the Commission of 20 February 1963, which took effect on 1 January 1962, she was granted one year's leave on personal grounds from 13 January 1964, which was subsequently extended to 15 November 1965.
By a decision of the Director of the establishment at Ispra of 8 November 1965, which took effect on 16 November 1965, Miss Hoffmann was reinstated, at her request, in a post as a secretary/shorthand typist in the Library and Documentation Department.
By a decision of 3 October 1966, which took effect on the preceding 1 September, Miss Hoffmann was established as a probationary official in Grade B 5 and assigned to a post as a member of the technical staff (librarian); she was established in that post by a decision of 22 March 1967, which took effect on 1 March 1967, and promoted, with the same duties, to Grade B 4 by a decision of 3 February 1971, which took effect on 1 January 1970.
The General Provisions to give effect to the procedure for promoting staff paid from research appropriations [hereinafter referred to as “the General Provisions”], which were adopted by the Commission with effect from 1 January 1977, provide, in particular, for the establishment of two Joint Promotion Committees of first instance and a Joint Committee of second instance, which must draw up provisional lists of officials having the seniority required for promotion and considered to be most deserving of promotion after a comparison of the merits of all officials eligible for promotion on 31 December of the current year and a comparison of the staff reports on those persons and on the basis of the conclusions of a preliminary examination which is carried out jointly in each of the establishments of the Joint Research Centre and in each programme or action in the framework of indirect actions. The provisional lists of officials considered by the committee of second instance to be most deserving of promotion are transmitted to the appointing authorities; who establish final lists; only such officials as are on those lists may be promoted.
On learning in September 1980 that she had not been included on the provisional list of officials suggested for promotion although she considered that she was eligible for promotion, Miss Hoffmann wrote on 12 September 1980 to the President of the local Staff Committee, on 13 November 1980 and 21 January 1981 to the Director General for Administration and Personnel, President of the Promotion Committee of second instance, and on 21 January 1981 to the Head of Department responsible for administrative questions.
Since her approaches were not successful, Miss Hoffmann submitted on 19 March 1981, through her lawyer, a complaint to the Director General, the appointing authority, based principally on the allegation that the various committees had failed to consider her for promotion to Grade B 3 owing to an incorrect assessment of her qualifications whereas they had considered Mrs G., a colleague, whose qualifications had likewise been incorrectly assessed, but to the opposite effect.
The complaint, the full file on which was lodged subsequently, elicited no express reply from the Commission.
II — Written procedure
On 26 October 1981 Miss Hoffmann lodged'this application, directed against the implied rejection of her complaint, which is presumed in the absence of a reply from the Commission.
The written procedure followed the normal course.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry. However, the parties were requested to answer two questions at the hearing.
III — Conclusions of the parties
The applicant claims that the Court should:
1) Declare null and void:
a) the decision taken by the committees referred to in the General Provisions to give effect to the procedure for promoting staff paid from research appropriations not to propose the appointing authority that the applicant be entered on the provisional list specified in Article 7 of the General Provisions;
b) the decision of the appointing authority not to enter the applicant on the list specified in the second paragraph of Article 7 of those provisions;
c) each and every one of the measures, both earlier and later, relating to the promotion procedure in question, including any promotions made, inasmuch as they may hinder rectification of the applicant's situation, and in particular the promotion of Mrs G.;
2) Concurrently or alternatively, in the exercise of its unlimited jurisdiction, Order the defendant to pay by way of damages for the material and nonmaterial injury sustained by the applicant an amount in Belgian francs to be determined by the Court ex aequo et bono and to include, if the Court sees fit, interest which the latter regards as normally payable, as from 19 March 1981;
3) Order the defendant to pay the costs.
The Commission contends that the Court should:
a) Dismiss the application as unfounded; and
b) Order the applicant to pay the costs.
IV — Submissions and arguments of the parties in the written procedure
A — Admissibility of the application
The Commission remarks (without, however, raising a formal objection of inadmissibility) that the originating application was lodged on 26 October 1981, whereas according to Article 91 (3) of the Staff Regulations it ought to have been lodged no later than 19 October 1981; since the applicant's complaint was submitted on 19 March 1981 the implied decision rejecting it, from which the three month period within which the application must be lodged commences to run, occurred on 19 July 1981.
The applicant expresses no views on the matter.
B — The substance
The applicant's case is based on the argument that the competent authorities made an incorrect assessment of the comparative qualifications and merits of those eligible for promotion; moreover, the procedure which was followed did not meet the requirements of the Staff Regulations.
The Commission considers the applicant's submissions to be entirely without foundation.
1. The assessment of the qualifications and merits of the candidates
The applicant alleges that the decisions at issue were based on considerations or facts, or both, which were wrong, inaccurate or misinterpreted.
a) Both the committees responsible by virtue of the General Provisions for submitting to the appointing authority the list of officials most deserving of promotion and the appointing authority itself failed adequately to appreciate the fact that the applicant's librarianship studies were more advanced in every respect than those, of a significantly lower level, completed by Mrs G., the official directly in competition with her. The disparity becomes apparent on a reading of the certificate delivered by the Bayerische Beamtenfachhochschule, Fachbereich Archiv- und Bibliothekswesen [Department of Document and Librarianship Studies, Bavarian Technical College] of 23 October 1980; it is stated in the certificate that the applicant's qualification is equivalent to a Graduierungszeugnis eines graduierten Ingenieurs [Degree in technical studies] and would correspond, in the future, to a Diplom-Zeugnis eines Diplom-Ingenieurs mit Fachhochschulausbildung [Degree in technical studies awarded after completion of training at a technical college]. Mrs G.'s studies, by contrast, are not even sufficient to enable her to be regarded as a qualified library documentalist and in duration and level they are quite inferior in every respect to the applicant's studies.
b) Any promotion procedure, if the posts which are available are fewer than the number of officials eligible for promotion, necessarily entails an element of competition between the officials and other servants of whom a list is to be submitted to the appointing authority. It is in any event not surprising that the applicant considers herself to be in direct competition with another librarian, and not with all the other officials in Grade B 4 in general. That does not prevent the applicant from seeking the annulment of all the steps, both initial and subsequent, involved in the promotion procedure in question.
c) The applicant certainly does not claim that she should have been promoted in preference to Mrs G., but merely that a promotion procedure in the course of which neither the authorities provided for in the General Provisions nor the appointing authority itself took into account the merits of those eligible for promotion or all the contents of the file is an irregular procedure; as such, it must incur the censure of the Court. Similarly, she is not claiming that the promotion procedure should be conducted on the basis of qualifications. She wishes to ensure that account is taken of her merits, which include possession of a major qualification gained after a period of difficult study, for which she was even obliged to seek leave on personal grounds. She does not even claim that possession of such a qualification must necessarily be decisive in the selection made by the appointing authority, but maintains that it is a factor which it is bound to take into account in making its decision, whatever that may be. The appointing authority and the preparatory committees did not do so; that is precisely the complaint directed at the Commission. The fact that the qualifications the respective values of which the appointing authority failed to assess correctly were obtained 15 years ago does not alter the situation in any way.
d) The Commission relies on the decisions in which the Court held that it was not entitled to substitute its own judgment for a subjective assessment made by the administration; yet the Commission itself is proposing to do the same, anticipating the decision of the preparatory committees and of the appointing authority, which had, in fact, been fully and accurately informed.
e) It is not sufficient for the Commission to assert that the committees and the appointing authority took account of all relevant factors; it must substantiate that assertion. It is true that the appointing authority's power of appraisal is discretionary; however, it has a duty to explain how it reaches a decision, even a discretionary one, and the factors which it takes into consideration. In this instance the appointing authority failed, in particular, to examine the qualification and the certificate in question, or having examined them, failed to note the different level of those qualifications; it therefore adopted its decision on the basis of information which was incomplete, or at least misinterpreted. Those are sufficient grounds for annulling the decisions granting and refusing promotion in so far as they concern the applicant.
The Commission contends that the applicant's submission is unfounded both in fact and in law.
a) The very manner in which it is formulated indicates a lack of acquaintance with the principles governing the promotion procedure. The General Provisions are based on Article 45 (1) of the Staff Regulations, which states that promotion It is thus apparent that there is no special element of competition between the officials eligible for promotion within a particular administrative unit, either at the level of the promotion committees or at the level of the appointing authority; those bodies carry out a comparative examination of the merits of all the officials eligible for promotion without considering which particular administrative unit they belong to. The promotion of Mrs G. is in no way an “obstacle” to that of the applicant. Hence the comparison made by the applicant between the level of her qualification and that of Mrs G.'s is irrelevant: neither the promotion committees nor the appointing authority was bound to make a special comparison of the qualifications held by those two officials.
“... shall be exclusively by selection from among officials who have completed a minimum period in their grade, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them”.
b) In any case the comparison in no way indicates that the applicant ought to have been promoted in preference to MrsG. The applicant's sole argument in that regard is based on a comparison between the level of her own qualifications and those of Mrs G. However, the procedure was not in any way a form of promotion based on qualifications: rather, in accordance with Article 45 (1) of the Staff Regulations and the General Provisions adopted to give effect to it, the procedure to be followed was to make promotions exclusively by selection, after consideration of the comparative merits of the officials eligible for promotion and of the reports on them. The level of an official's qualification is not a decisive criterion in assessing his or her merits with regard to promotion, especially where, as in this case, the qualification was acquired 15 years ago, so that the promotion authorities have numerous factors arising after the qualification was obtained on which to base their assessment.
c) Merely in the alternative, the Commission points out that, although Mrs G.'s qualification does in fact appear to be of a lower level than that of the applicant, both qualifications give equal access to Category B and were acquired in 1965, that is to say, 15 years before the promotion procedure at issue. In assessing the merits of officials eligible for promotion the promotion authorities take into consideration all the information available in both the personal files and the reports of the superiors of the officials concerned; of that information, the level of a qualification acquired 15 years earlier of which the promotion authorities were aware cannot amount to a crucial, or even an important, factor. The assessment of those various factors and the weight to be attached to each of them is a matter for the discretion of the promotion authorities and the Court has rightly declined, on a number of occasions, to substitute its own judgment in matters of promotion for the subjective assessments made by the administration.
d) The applicant's submission that the authorities did not appreciate the respective values of her qualification and that of Mrs G. is not correct.
e) The fact that the applicant obtained her qualification 15 years before the promotion procedure in question is not irrelevant. The fact that the applicant, who hitherto had been classified in Category C and had carried out the duties of a secretary, obtained that qualification enabled her, in particular, to be promoted to Category B. In assessing the applicant's merits with a view to promotion under the 1980 budget, however, the authorities were principally concerned to consider her merits as evidenced in the performance of her duties in recent years. As a result of that examination the promotion authorities decided, in the exercise of the power of appraisal conferred upon them, that Miss Hoffmann did not merit inclusion on the list of officials “most deserving” of promotion to Grade B 3. The applicant has submitted no evidence to show that the comparative examination of the merits thus carried out is vitiated by a manifest error of fact.
2. Article 45 (1) of the Staff Regulations
In her reply the applicant makes an additional submission based on an alleged failure to comply with the requirements of Article 45 (1) of the Staff Regulations.
a) Article 42 (2) of the Rules of Procedure permits that fresh issue to be raised, as it is based on documents of which the applicant had no knowledge until the proceedings had commenced.
b) The joint working party responsible for making a preliminary examination with regard to promotion (known as “Instance Zéro”) drew up a list of officials to be promoted, but it has not been established that it examined the reports and the personal files relating to those officials, which is an essential precondition for a full and impartial comparative examination of the merits of the officials. The promotion committee of first instance did not make a comparative examination of the merits of the officials to be promoted, of their personal files and of the reports on them. There is no indication in the minutes of the meeting of 27 November 1980 that the Directors General who drew up the final list of officials to be promoted were given the opportunity of examining the personal files and therefore had full and impartial information at their disposal.
c) The various bodies charged with carrying out the preparatory work are themselves bound to proceed in the manner laid down by Article 45 of the Staff Regulations; the discretion enjoyed by the appointing authority and, by corollary, by the other authorities, has as its counterpart a duty to carry out “a comparative examination of the merits of the officials eligible for promotion and of the reports on them”. It would appear, however, that the committee of second instance did not observe the requirements laid down in that respect by the Court of Justice.
The Commission considers that second submission to be inadmissible and in any event unfounded.
a) The raising of this issue is contrary to Article 42 (1) of the Rules of Procedure.
b) Considered in the light of the various stages which occur in the promotion procedure, the submission is unfounded in each of its three parts.
The procedure governed by the General Provisions commences, pursuant to Article 4, with a meeting within each of the establishments of the Joint Research Centre and in each programme or action in the framework of “indirect actions” of a joint committee responsible for making a preliminary examination of the merits of all officials eligible for promotion. That committee, known as “Instance Zéro”, which was set up in this instance at the establishment at Ispra, met on 4 September 1980 and did not include the applicant's name on the list of officials to be put forward for promotion to Grade B 3.
The committee carried out a preliminary examination after which it decided that “all the documents referred to in Article 45 of the Staff Regulations, in particular the detailed lists of officials suggested for promotion and for advancement to a higher step within a grade and the files containing personal information, were available to the persons attending the meeting”. In any case, it must be noted that as a matter of law the preliminary examination carried out by the ad hoc committee does not form part of the promotion procedure itself.
The promotion committee of first instance was convened on 25 September 1980 and, after carrying out a comparative examination of the merits of the officials, decided to include 12 names in the provisional list of officials considered to be most deserving of promotion to Grade B 3, among which the applicant's name did not appear. It is clear from the record of its proceedings that the committee was in possession of the documents referred to in Article 45 of the Staff Regulations.
The promotion committee of second instance, which has responsibility for all staff paid out of research appropriations, met on 19 November 1980 in order to draw up, in the light of the recommendations made by the committees of first instance, provisional lists of officials and other servants judged to be most deserving of promotion; that committee put forward the names of 10 officials for promotion to Grade B 3.
In accordance with Article 7 of the General Provisions the various provisional lists were submitted to the appointing authorities. By decision of 27 November 1980 the appointing authority drew up a “list of officials considered to be most deserving of promotion to the next grade in their career bracket ...”; 10 names appeared on the list of promotions to Grade B 3. The joint decision of the Director General of the Joint Research Centre and the Director of Personnel adopting the list states that they “had the opportunity to consult the personal files of all the officials and temporary servants eligible for promotion”. Those authorities were not bound to examine the personal files.
No such obligation is referred to in the General Provisions; on the contrary, they provided, pursuant to Article 45 of the Staff Regulations, for the establishment of a system whereby the decision of the appointing authority adopting the “list of officials considered to be most deserving of promotion ...” is preceded and prepared for by the work carried out by the promotion committees, half of whose members are staff representatives, so as to guarantee a thorough consideration on a joint basis of the merits of the officials eligible for promotion and observance of the requirements of Article 45 of the Staff Regulations.
3. The conclusions in the application
Purely in the alternative, the Commission is of the opinion that, if the application is declared to be well founded, there is no reason to annul all the decisions promoting officials to Grade B 3 which occurred at the end of the procedure at issue; to do so would cause the promoted officials harm out of proportion to the damage suffered by the applicant.
Similarly, it would be arbitrary to annul the decision promoting Mrs G. on the ground that she is employed in the same administrative unit as the applicant.
The applicant observes that by the terms of her application she seeks the annulment of the procedure in its entirety, both the early and the later stages, inasmuch as it is prejudicial to her interests, and that that should include all the promotions, if necessary.
Nevertheless, should the annulment of the entire procedure which is the main purpose of the action appear to be too wide a measure, it would be open to the Court to annul solely Mrs G.'s promotion, which constitutes an obstacle to the promotion of the applicant, or to order the Commission to pay damages to the applicant.
The question whether the appropriate remedy is annulment or the award of damages to the applicant, or both, should be decided by reference to the maxim jura novit curia.
V — Oral procedure
Oral argument was presented at the sitting on 16 December 1982 by Marcel Slusny, for the applicant, and by Daniel Jacob, for the defendant.
As far as the admissibility of the application is concerned, both parties have agreed to accept, on the one hand, that since the applicant had no notice of the relevant promotion decisions until 19 December 1980 her complaint was submitted within the period laid down in Article 90 (2) of the Staff Regulations of Officials and, on the other hand, that the application itself was in fact lodged within the period laid down in Article 91 (3) of the Staff Regulations, if account is taken of the 10-day extension of the time-limit on account of distance in the case of Italy provided for in Annex II to the Rules of Procedure.
The applicant alleges that the Commission has failed to produce certain documents.
As regards the substance of the case the parties restated and elaborated on the submissions and arguments set out in the course of the written procedure.
The Advocate General delivered fier Opinion at the sitting on 24 February 1983.
Decision
1. By an application lodged at the Court Registry on 26 October 1981 Christiane Hoffmann, an official at the Commission of the European Communities in Grade B 4 employed as a member of the technical staff (librarian) in the Library and Documentation Department of the Joint Research Centre atlspra, brought an action for the annulment of the implied decision of the Commission refusing to promote her to Grade B 3. Concurrently or in the alternative the applicant seeks the award of damages.
2. According to the file the applicant, together with 121 other officials paid from research appropriations, satisfied in 1980 the conditions for promotion to Grade B 3, whereas the budget allowed for no more than nine posts. She was not selected either by the promotion committees provided for in the General Provisions to give effect to the procedure for promoting staff paid from research appropriations, adopted by the Commission with effect from 1 January 1977, or by the appointing authority, which, on 19 November 1980, adopted a decision with regard to all the promotions in accordance with the proposals put forward by those committees.
3. After writing various memoranda to those concerned in the promotion procedure and submitting to the appointing authority a complaint under Article 90 of the Staff Regulations which produced no result, the applicant brought an application supported originally by a single submission based on Article 5 (3) of the Staff Regulations, namely that the committees responsible for preparing the lists for promotion and the appointing authority failed to make a proper assessment of the applicant's qualifications and merits, in particular the value of her librarianship qualification, compared especially with another candidate who was employed, like herself, in library work, but whose qualification was of a considerably lower level than her own.
4. After the Commission had produced, in the annex to its defence, the minutes of the meetings of the various promotion committees and the full text of the decision of the appointing authority, the applicant amplified her arguments in the reply, alleging that both the committees and the appointing authority had failed to fulfil their obligation to examine with care her own personal file and those of the other candidates, contrary to the requirements of Article 45 (1) of the Staff Regulations, which demands a “consideration of the comparative merits of the officials”. The documents, she maintains, indicate that the personal files were made available to the committees and the appointing authority but it is not shown that they were actually consulted with the requisite attention, a fact to which the injustice in her case must be attributed.
5. The submissions put forward by the applicant call for the following observations, without its being necessary to consider the Commission's objection that the fresh issues raised in the reply are out of time.
6. The information supplied by the parties as to the proceedings of the promotion committees and the circumstances in which the impugned decision of the appointing authority was adopted indicates that the promotion procedure was carried out in accordance with the rules laid down in the Staff Regulations and the relevant internal provisions.
7. The participation of several joint committees in the promotion procedure, the review of the decisions of the committee of first instance by an appellate committee before any decision is taken by the appointing authority and the opportunity given to the officials concerned to submit their comments to those responsible for conducting the procedure, an opportunity of which the applicant took advantage, ensure for all those concerned that their merits will be the subject of a thorough and objective examination and of a comparison with those of other candidates. It is not contested in this instance that the personal files of the officials concerned were made available to the promotion committees and to the appointing authority. However, it would be unreasonable to require the committees and the appointing authority to explain in each case the use which they made of the information available to them.
8. Since the applicant has adduced no serious evidence giving reason to suppose that the promotion committees or the appointing authority allowed themselves to be influenced by considerations irrelevant to the assessment of the merits of the candidates and the interests of the service, her arguments cannot be accepted.
9. As regards the submission based on the failure to appreciate the comparative value of the applicant's qualification, it must be stated that considerations of that nature may be of significance when officials are recruited, established or even placed in a different category, as was the case when the applicant was appointed to Grade B on 3 October 1966. In the case of subsequent promotion, however, other factors must be taken into account when the merits of officials eligible for promotion are compared, in particular the general quality of the work which they have performed in carrying out their duties.
10. The applicant cannot, therefore, take issue with the fact that among the officials selected for promotion was someone whose qualification was, in her estimation, inferior to her own. Apart from the dispute as to the comparative value of the qualifications, the applicant has failed to adduce any evidence indicating that the judgment of the authorities may have been distorted by considerations unconnected with the criteria laid down in Articles 5 and 45 of the Staff Regulations.
11. The claim for annulment of the decision of the appointing authority must therefore be dismissed. As a result of the dismissal of that claim, the claim for damages must likewise be dismissed.
Costs
12. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. However, Article 70 of the Rules of Procedure provides that, in proceedings by servants of the Communities, the institutions are to bear their own costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the application;
2 Orders each party to bear its own costs.